GYROTONIC® Terms and Conditions of Sale
Please read these terms and conditions carefully, as they include important information regarding your legal rights, remedies and obligations with regards to the purchase of GYROTONIC® exercise equipment.
1.1 In these conditions the following definitions apply.
Business Day means a day other than Saturday, Sunday and public holidays when banks generally are open for non-automated business;
Contract means the agreement between the Seller and the Purchaser for the sale and purchase of Products incorporating these Conditions;
Delivery Location means the address in Hong Kong/China where the Seller will deliver the products for collection by the Purchaser. The Seller will advise the Purchaser of the address in writing on or before the Products are available for collection;
Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract, including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required by for performance of the Contract, except any party's failure to pay shall not be an event of Force Majeure in any event;
Products means GYROTONIC® exercise equipment or any part thereof, including without limitation the physical equipment, and any educational and/or instructional materials supplied by the Seller to the Purchaser;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trademarks, trade names, product design, package design, design rights, rights in goodwill, rights in confidential information, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) to which the Seller is or may be entitled to use; and
(e) in whichever part of the world.
Order means the Purchaser's written order for the Products from the Seller OR the Purchaser's written acceptance of the Seller's quotation for the supply of Products;
Purchaser means any person or firm who purchases Products from the Seller identified and whose details are set out in the Order;
Seller means Body Reform Studios Limited trading as “GYROTONIC® Hong Kong” and registered in Hong Kong at 802-805, 8th Floor Yu Yuet Lai Building, 43-55 Wyndham Street, Central, Hong Kong;
Specification means the description or specification of the Products provided by the Seller;
Terms and Conditions means the terms and conditions of sale set out in this document;
Taxes and Duties means any form of taxes, customs duties, or related charges that may apply to the sale of the Products.
2.1 Unless the context otherwise requires:
i) any reference to a gender includes all other genders;
ii) all references to the singular includes the plural and vice versa;
iii) all references to the Contract include these Terms and Conditions;
iv) any references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
v) clause headings do not affect their interpretation;
vi) general words are not limited by example; and
vii) references to any legislation will be construed as a reference to that legislation as amended, re-enacted or extended at the relevant time.
3 ORDERS FOR PRODUCTS
3.1 All orders for Products shall constitute a contractual offer to purchase the Products and our acceptance of that offer is deemed to occur upon our sending an email to you indicating that your order has been accepted, alternatively if we provide a quotation for Products this will be treated as an offer, then acceptance will occur upon written acceptance of our quotation.
3.2 The Purchaser must (a) be at least eighteen (18) years of age and (b) be a natural person, corporation, partnership or other legal entity to purchase any Products.
4 PRICES AND PAYMENT
4.1 The price for the Products will be as set out in the Order or in default of such provision will be calculated in accordance with the Seller's standard scale of charges in force on the date of formation of the Contract.
4.2 The price of the Products does not include delivery (unless otherwise specified).
4.3 The Seller shall issue its invoice for the Products after the Order is accepted.
4.4 The Purchaser will pay all Invoices including any deposit if applicable, in cleared funds by cheque payable to GYROTONIC® Hong Kong or by Bank Transfer to the Seller’s nominated bank account specified on the invoice (unless otherwise specified).
4.5 All payments by the Purchaser will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case the Purchaser will pay such additional amount as will ensure that the Seller is paid the full amount it would have received but for such deduction or withholding.
4.6 Full payment for the Products must be received by the Seller prior to delivery.
4.7 The time of payment is of the essence. Where any final sum due is not paid by the due date, Seller may, at its sole discretion cancel the order and keep any deposit paid for the Products.
5 REFUNDS AND CANCELLATIONS
5.1 Unless otherwise agreed to in writing, all sales of Products are final and all charges from those sales are non-refundable.
5.2 The Seller reserves the right to refuse or cancel any orders placed for Products listed at an incorrect price, or containing any other incorrect information or typographical errors. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and paid for. If the Order has been paid for, and has been cancelled by the Seller the Purchaser will receive a refund of the price paid for the Products.
5.3 The Seller reserves the right, at any time, to change the prices and billing methods for any of the Products.
6 DELIVERY, RISK AND TITLE
6.1 The delivery terms are Ex Works (Incoterms 2010), and the Products will be made available by the Seller to the Buyer at the Delivery Location (unless otherwise specified).
6.2 The Products will be deemed delivered by the Seller when the Products are made available to the Purchaser at the Delivery Location (unless otherwise specified).
6.3 The Purchaser must arrange the collection of the Products from the Delivery Location, and is responsible for clearing the goods through Customs, and for completing all of the export documentation (unless otherwise specified).
6.4 Risk and Title to the goods will pass to the Purchaser upon delivery.
6.5 The Seller will use its reasonable endeavours to meet delivery dates provided to Purchaser, but such dates are approximate only, and time of delivery is not of the essence.
6.6 The Seller will not be liable for any delay in delivery caused by any event of Force Majeure.
7.1 Warranty to the Products is provided by the manufacturer(s) of the equipment and not by the Seller.
7.2 To the fullest extent permitted by applicable law, the Seller disclaims all warranties, conditions and other terms of any kind, express or implied, in connection with the Products and with Purchasers use of the Products (including, without limitation, as to satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy), policy.
7.3 Details of the warranty provided by the manufacturer(s) of the Products is provided online at http://www.gyrotonic-hongkong.com/index.php?id=88.
8 USE OF THE PRODUCTS
8.1 The Purchaser, will not utilize (nor allow any other person to utilize) the Products or any other items received at purchase (including but not limited to promotional, instructional and educational materials) in any commercial, not-for-profit or other charitable manner (“Commercial Use”) without having successfully completed the GYROTONIC® Certification Curriculum (including the GYROTONIC® Foundation Course).
8.2 Furthermore, the Products shall not, without the Seller’s written consent, not be loaned, sold, leased, or bartered to any individual or organization which intends, or could reasonably be expected, to utilize the Equipment in a Commercial manner, unless the person with whom the Purchaser is entering into such commercial relationship has successfully completed the GYROTONIC® Certification Curriculum (including the GYROTONIC® Foundation Course).
8.3 In the event that Purchaser, on or before the purchase of the Products, warrants that Purchaser has successfully completed each aspect of the GYROTONIC® Certification Curriculum (including the GYROTONIC® Foundation Course), Purchaser shall be permitted to utilize the Equipment for Commercial Use provided that said Commercial Use is made solely and exclusively in conjunction with the GYROTONIC® Certification Curriculum.
8.4 In the event that Purchaser, subsequent to executing this Agreement successfully completes each aspect of the GYROTONIC® Certification Curriculum (including the GYROTONIC® Foundation Course), and presents satisfactory evidence to such effect to the Seller, then the Purchaser shall be permitted to utilize the Equipment for Commercial Use provided that said use is made solely and exclusively in conjunction with the GYROTONIC® Certification Curriculum.
8.5 Purchaser shall not permit the Equipment to be used by anyone unless that person has successfully completed each aspect of the GYROTONIC® Certification Curriculum.
8.6 Purchaser represents to Seller that Purchaser is aware that using the Products includes the performance of often vigorous physical exercise which may include stretching, jumping, and aerobics. Purchaser fully understands that participation in such activities includes certain inherent risks and voluntarily assumes these risks at all times on behalf of the Purchaser and any other person authorized by the Purchaser to use the Products.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 Nothing contained in these Terms and Conditions shall be construed as conferring by implication, estoppel or otherwise, any license or right to use any Intellectual Property Rights other than as permitted in these Terms and Conditions.
9.2 The Purchaser acknowledges that all trademarks and service marks relating to the Products, including, GYROTONIC® & Logo, WHITE CLOUD, GYROKINESIS®, GYROTONER®, Transformer, THE ART OF EXERCISING AND BEYOND and GYROTONIC EXPANSION SYSTEM® (the “Trademarks”) and any other Intellectual Property Rights are owned by GYROTONIC® Sales Corporation (GSC), and are licensed by the Seller. Purchaser shall not at any time contest the validity of the Trademarks, claim adversely to Seller or GSC any right, title or interest in and to the Trademarks, shall not register, apply to register or aid a third party in registering the Trademarks or a confusingly similar variation thereof, or use the Trademarks or a confusing similar variation thereof anywhere in the world whatsoever except as described herein.
9.3 Notwithstanding the foregoing, the Purchaser shall be permitted to use the Trademarks in advertising and promotional material in connection with instruction in the use of GYROTONIC® equipment. However, Purchaser shall submit to Seller and GSC for approval copies of all advertising, promotional material and other material which Purchaser wishes to use.
9.4 Upon written notice from the Seller or GSC to the Purchaser to cease using the Trademarks in any advertising and promotional material in connection with instruction of GYROTONIC® equipment, Purchaser will immediately comply with such directions in an expedient manner.
10 LIMITATION OF LIABILITY AND INDEMNITY
10.1 To the fullest extent permitted by law, the Seller expressly excludes any liability for any direct, indirect, consequential, special or exemplary loss or damage whether arising in tort, contract, or otherwise (whether such losses were foreseen, foreseeable, known or otherwise) for any death or injury to persons arising from, out of or in connection with the use of the Products.
10.2 However, nothing in these Terms and Conditions shall exclude or limit the Seller’s liability for death or personal injury caused by our negligence, or for any other liability which cannot be excluded or limited under applicable law.
10.3 Purchaser agrees and acknowledges that the Seller shall not be liable for any damages or injuries resulting from the unauthorized, inappropriate or negligent use of the Products.
10.4 The Seller is not liable for failure to comply with these Terms and Conditions due to any event beyond the Seller’s reasonable control, including, without limitation, any incorrect information provided by the Purchaser.
10.5 The Purchaser agrees to indemnify, defend and hold the Seller harmless against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to legal fees) arising from or in connection with: (i) the Purchaser’s use of the Products; (ii) any violation by the Purchaser of these Terms and Conditions or of any law, regulation or third-party right.
11 GENERAL TERMS
11.1 If any of these Terms and Conditions are determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any state or country in which these terms and condition are intended to be effective, then to the extent and within the jurisdiction in which that term is illegal, invalid or unenforceable, it shall be severed and deleted from these Terms and Conditions and the remaining Terms and Conditions shall survive, remain in full force and effect and continue to be binding and enforceable.
11.2 No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
11.3 The parties are independent businesses and not principal and agent, partners, or employer and employee.
11.4 These Terms and Conditions are governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region (“Hong Kong”). Any disputes relating to these Terms and Conditions shall be subject to the exclusive jurisdiction of the courts in Hong Kong.